An Originalism for Foreign Affairs?

20 Pages Posted: 20 May 2008 Last revised: 3 Nov 2008

See all articles by Ingrid B. Wuerth

Ingrid B. Wuerth

Vanderbilt University - Law School


Legal scholarship on foreign affairs frequently focuses on the Constitution's text and original meaning, but generally does not fully engage debates about originalism as a method of modern constitutional interpretation. For its part, much of the scholarship defending originalism as a methodology has said little explicitly about foreign affairs. This short symposium contribution describes three contemporary normative arguments in favor of originalism - those advanced by Randy Barnett, Keith Whittington, and John McGinnis and Michael Rappaport - and then considers their application to foreign affairs. It concludes that these arguments are at best underdeveloped and at worst weak when it comes to many of constitutional issues that arise in the foreign affairs area. Originalists could clarify and strengthen their normative arguments if they focused greater attention on foreign affairs, particularly non-judicial constitutional interpretation, the relationship between executive and congressional power, and consequentialist problems that arise in this context. For foreign relations scholars, particularly those focused on history, this contribution is meant to encourage greater engagement with the methodology of contemporary constitutional interpretation.

Keywords: foreign affairs, foreign relations, originalism, constitutional interpretation, Youngstown, war powers

Suggested Citation

Wuerth, Ingrid B., An Originalism for Foreign Affairs?. St. Louis University Law Journal, Forthcoming, Vanderbilt Public Law Research Paper No. 08-13, Available at SSRN:

Ingrid B. Wuerth (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics